Mitchell v. Dyer

• Decision Date: 03 March 1933
• Docket Number: No. 30491.,30491.
• Citation: 57 S.W.2d 1082
• Parties: MITCHELL v. DYER.
• Court: Missouri Supreme Court

57 S.W.2d 1082

MITCHELL v. DYER.

No. 30491.

Supreme Court of Missouri, Division No. 2.

March 3, 1933.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Suit by Wallace Mitchell against James F. Dyer, doing business as the James Dyer Produce Company. Verdict for defendant. From an order sustaining a motion for a new trial, defendant appeals.

Order affirmed, and cause remanded.

Omer H. Avery, of Troy, for appellant.

Wm. C. Martin and Creech & Creech, all of Troy, for respondent.

WESTHUES, Commissioner.

This case comes to the writer on reassignment. Respondent, plaintiff below, sued appellant, defendant below, for damages alleged to have been caused by a collision of plaintiff's car with defendant's truck. The trial resulted in a verdict for defendant. The trial court sustained the motion for a new trial and defendant appealed. In his petition plaintiff asks for damages in the sum of $8,261.25; hence the appellate jurisdiction in this court.

The facts, briefly stated, are as follows: On February 12, 1929, defendant was engaged in the trucking business at Troy, Mo. That evening after dark defendant's son, James L. Dyer, and Pat Penn, both employed by defendant, were towing a disabled truck north on Highway 61. Penn was driving the leading truck and was towing the disabled truck being steered by Dyer. Plaintiff was traveling north in his car, and when he reached a point a short distance north of Highway No. 40, he ran into and collided, with the rear end of defendant's truck that was being towed. As a result of this collision, plaintiff sustained the injuries alleged in his petition and for which he asks damages. The evidence discloses that immediately prior to the collision a car with bright headlights was coming south toward plaintiff and defendant's trucks. The collision occurred about the time the car going south was passing the trucks.

The petition charged that defendant was negligent, in that he failed to have a red light at the rear end of the truck that was being towed so as to disclose its presence upon the highway. There was evidence to sustain this charge. Defendant's employees in charge of the trucks testified that there was a red light on the truck in question, but that the collision rendered the light temporarily out of commission. The answer consisted of a general denial and a plea of contributory negligence in that plaintiff was, at the time of the collision, driving at a high, excessive, and negligent rate of speed.

The assignments of error in the motion for a new trial are with reference to the giving of five instructions offered by defendant. The trial court did not indicate the reason for granting a new trial. We will, therefore, examine the instructions complained of in the motion. If the giving of any one of these instructions constituted reversible error, the action of the trial court must be sustained.

Defendant's instruction No. 4, given by the trial court, reads as follows: "If the jury believe from the evidence that the injuries sustained by plaintiff, if any, were merely the result of accident, then your verdict will be for defendant." In this case there was no evidence from which the jury could find that the collision was the result of an accident within the meaning of the word "accident" in the law of negligence. Considering the evidence in the case, it is evident that the collision was the result of the negligence of the defendant or the plaintiff or the negligence of both. Therefore, an accident instruction should not have been given. Head v. Leming Lumber Co. (Mo. Sup.) 281 S. W. 441, loc. cit. 444 (5); Barr v. Mo. Pac. R. R. Co. (Mo. Sup.) 37 S.W.(2d) 927, loc. cit. 930 (15); Beauvais v. City of St. Louis, 169 Mo. 500, 69 S. W. 1043; Wright v. Quattrochi (Mo. Sup.) 49 S.W.(2d) 3; Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S. W.(2d) 707, loc. cit. 714 (13, 14), 65 A. L. R. 129. The trial court, therefore, properly granted a new trial.

Appellant contends that in none of the cases cited by respondent was the case reversed because of an accident instruction. However, the cases hold that an accident instruction, when given in cases where there is no evidence to warrant the instruction, is error. The Quattrochi Case, supra, 49 S.W.(2d) 3, and Chaar et al. v. McLoon, 304 Mo. 238, 263 S. W. 174, were both reversed because of an accident instruction.

Instruction No. 3, complained of, told the jury that, in determining whether plaintiff was guilty of negligence at the time of the collision, they might take into consideration the circumstances at the time of the collision,...